Handbook Continued

Virginia Commonwealth University
Sexual Assault Survivor's Handbook

WHAT ARE MY LEGAL RIGHTS?

All survivors of sexual assault and rape have several legal remedies open to them. The primary options are
  • criminal prosecution and
  • civil suit for damages.
VCU students have additional options, which are described at the end of this section.

These avenues are not mutually exclusive. First, it's important that you not feel coerced into any action. Criminal and civil suits take time and may result in no conviction or loss of a suit. Yet, many survivors who have chosen either or both options have found the process to be empowering, regardless of the outcome. Criminal and civil procedures are very different, with distinct sets of rules. They are briefly described below, as are options for VCU students. However, it would be helpful to discuss these options with the VCU Victim-Witness Coordinator, the VCU Sexual Assault Education Coordinator, a lawyer with experience in this area, and family and friends. Establish your support system in advance. These people are the same individuals you might rely on throughout the legal proceedings.

Criminal Prosecution

In order to prosecute criminally, you must file a formal report with the police department. It is also to your advantage to have evidence collected at the emergency room. You may request to speak to an officer who has experience dealing with victims of sexual assault and who can help to make the report an easier and more comfortable experience for you.

Once you have given a report to a police officer, the case is assigned to an investigator, usually a detective specially trained to handle sexual assault cases. In most counties, there is a Victims' Advocate to help you understand the legal process. (See Victim-Witness Assistance in the Helping Hands) If you are a student, the VCU Police has a trained Victims' Advocate.

If you decide to press charges, and if the Commonwealth's Attorney decides there is enough evidence, criminal charges are brought against the assailant. If the location of the assailant is known, an arrest takes place, and a bond hearing is held the next business day.

It may seem very impersonal, but from this point on your role becomes solely that of "witness." It is the state of Virginia ("the People"), as represented by the Commonwealth's Attorney, that brings charges against the perpetrator, with your testimony serving as evidence. Your testimony is essential to successful prosecution, but you will be in the courtroom only during the time you testify. This means you may be sitting outside the courtroom until you are called. It's important to remember that the standard of evidence in criminal prosecution is "beyond a reasonable doubt."

Preliminary Hearing -1 to 2 months after the bond hearing

The preliminary hearing, like a trial, is open to the public and lasts about an hour. It is a probable cause hearing; guilt or innocence won't be decided at this time. The prosecutor generally presents only enough evidence to establish the possibility that the assault occurred. Quite often, only the survivor's testimony is necessary. So, in nearly all cases you must be present to testify. If you choose not to appear, it's almost certain the case will be dropped. It's normal to feel anxious before and during the hearing. It helps to prepare for this by practicing relaxation techniques and/or talking with members of your support system. The Victims' Advocate also can be very helpful in preparing you for this experience.

Grand Jury

Evidence presented at the preliminary hearing is reviewed by a Grand Jury. During this time, neither you, nor the attorneys, nor the accused are present in the courtroom. The detective presents evidence to the Grand Jury on your behalf. The Grand Jury makes a recommendation as to whether or not a trial should be set.

Circuit Court Trial - minimum 4-5 months after the preliminary hearing, 2-8 weeks after Grand Jury

While both the prosecuting and defense attorneys may request "continuances," the prosecution is limited by the constitutional right to a fair and speedy trial. The defense does not have the same limitations placed upon them, which is why many trials stretch out to as long as one year or more. This can be a very stressful time, since a court date may be set, a continuance requested, and the date postponed several times. As the time passes, many survivors begin to heal, memories change and most physical injuries fade away. If you prepare yourself for this possibility, the emotional impact of any delays may not seem so extreme.

During the circuit court trial, you will be questioned on the witness stand as you were in the preliminary hearing. Although a survivor's past sexual history is not allowed, a defense attorney may ask you very personal questions, as well as the same ones s/he asked you in the preliminary hearing. It will be helpful to "practice" under pressure with your court advocate. And, just as in the hearing, you must remain outside the courtroom until you are called in to testify.

Sentencing

If the assailant is found guilty, you may file a Victim Impact Statement with the judge prior to sentencing. This allows you to tell the judge how the assault has affected your life, and your family, emotionally and economically. In a criminal jury trial, the jury, not the judge, determines the nature of the sentence. The defendant may choose not to have a jury trial. In that case, the judge hears and sentences. Rape and sexual assault charges, by law, range from a minimum of five years to life.

If the assailant is found not-guilty

A "Not-Guilty" verdict may be emotionally devastating and possibly very frightening for a survivor. However, in addition to focusing on your own healing process, you can bring further action against your assailant by filing a civil suit.

Civil suits for damages

Legally, sexual assault is not only a crime against the state, but also a civil dispute between survivor and assailant. You may win a civil suit in court or you may choose to negotiate a contract, or "settlement," out of court even if you lose a criminal case. This means that two parties or their lawyers reach a legally binding agreement without holding a trial.

The first step is to consult a lawyer. Some lawyers offer a one-time, initial free consultation and will take this kind of case on a "contingency fee" basis. This means that the lawyer's fee comes only from the money received from the assailant as part of the settlement.

The decision to begin a civil suit, or stop one in process, is entirely your own. You don't need to contact the police or the Commonwealth's Attorney, because they are not involved.

It's possible that the assailant may be willing to negotiate a settlement upon being notified by your lawyer that you intend to sue. If no settlement is reached at this point, the lawsuit begins when your lawyer files documents at the local courthouse and notifies the assailant of the suit.

The lawsuit is now in the "discovery" phase. Each side assesses the other's position. At this time, both you and the assailant are questioned by the other's attorney. These questions are customarily asked in the privacy of a lawyer's office. You should always be with your lawyer during these questions, who will advise you of any of the questions you don't have to answer.

Why might the assailant want to settle out of court?

Many people simply don't want the adverse publicity of a public trial, particularly if they fear the effects on their future careers, standing in the community, etc.

Second, the assailant may want to avoid a potentially large monetary judgment against him or her. A money judgment is a legal document prepared at the end of a successful lawsuit, which says that the defendant (assailant) owes the plaintiff (survivor) a specific sum of money as redress (retribution) for the assault. In sexual assault cases, money judgments differ from case to case.

Third, the assailant's lawyer may tell him/her that his/her chances of losing a lawsuit are far greater than in a criminal case. In a civil case, you and your attorney only needs to convince the judge or jury that your version of the facts is "more likely than not." Your chances of winning a civil suit are greater than in a criminal trial because of this less stringent standard of evidence.

The first steps - and cautions

In Virginia, the survivor has two years after the assault in which to begin the civil suit. Nevertheless, you should contact a lawyer as soon as possible. If you are unsure as to how to find a lawyer who is sensitive, or one who can work on a contingency basis, see the resources in the "Helping Hands" section of this booklet. A lawyer probably will advise you to make complete notes about the event, if you haven't done so already. A diary recording your emotional distress and recovery can be useful. You also will be advised to avoid any contact with the assailant, if you can, and to notify your lawyer if the assailant tries to contact you.

Most importantly, you must be aware that there is a possibility that you could be sued for slander by the assailant if you make accusations that identify the assailant to anyone except the following people: the police, your spouse, lawyer, doctor, licensed clergy member, or licensed psychologist. In this event, your lawyer most likely would ask the judge for a continuance until the conclusion of your own lawsuit against the assailant or until the criminal trial. This doesn't mean that you shouldn't speak with a counselor, someone at the YWCA, or if you are a student, with the dean of Student Affairs or a health care provider in the University Student Health Clinic. These are important sources of support. But conversations with these people are not protected by law. Because this kind of counter suit may be an attempt to silence you through intimidation, you may want to consult with your lawyer and support system before making any quick decisions about what to do.

If you are sued for slander, you may be able to settle the case by dropping your own lawsuit against the assailant. Or, you may have to defend yourself in the suit by proving that your statements about the assailant are true. If the assailant wins his/her suit, you may be forced to pay damages to him/her.

Options for VCU students

At VCU, there are several options available for action within the University. In the VCU Resource Guide there is a detailed explanation of these options. Here, a brief overview will be provided. Again, if you want more detailed information, contact the Office of Sexual Assault Education or the Dean of Student Affairs.

At VCU, each student is guaranteed the right to academic freedom and equal educational and occupational access. According to the VCU Rules and Procedures, no one can harass or intimidate you or cause physical injury or threaten you with force or violence. Rape and sexual assault fall under this category. Also, there is a Student Sexual Misconduct Policy to guarantee these rights further. (This policy can also be found in the VCU Resource Guide.) If there is a violation of these rights, you have several options regarding disciplinary action:

  • Informal Complaint: An informal complaint is a way to let your attacker know that he/she has broken the University rules without putting this offense on his/her academic record. The administrator receiving the informal complaint will conduct a confidential investigation by interviewing both the accuser and the accused. When necessary, others may be interviewed as well. After the investigation, a meeting is scheduled involving you, the accused, and the administrator. The administrator will act as the mediator in order to resolve the complaint. The administrator will suggest one or more options to resolve the complaint, such as apologies, specific understandings about future contact between you and the accused, or specific action to correct or compensate for the behavior of the accused. Filing an informal complaint does not negate your right to file a formal complaint later.
  • Formal Complaint: Formal complaints are evaluated by the administrator receiving the charge as to whether or not an investigation is warranted. After an investigation of the claim, the administrator decides if further action is necessary. Further action could include immediate sanctions by the administrator with no less than suspension or dismissal (no hearing) or referral of the case to the University Hearing Board. If a hearing is called, both you and the accused must present your case in front of the University Hearing Board. Both you and the accused are allowed to have an adviser with you during the hearing. The adviser cannot speak to the board, but can provide you with support. After all evidence is presented, the board will vote to decide guilt or innocence. A simple majority is required to determine the outcome. If guilt is found, the hearing board will decide on the type of punishment for the accused. Punishments range from censure (a written warning) to expulsion from the University. The accused has a right to appeal a University Hearing Board finding of guilt.
For a more detailed explanation of the Rules and Procedures, there are brochures available from the Office of Sexual Assault Education; the Office of the Associate Vice Provost of Student Affairs, and the Office of the Dean of Student Affairs, MCV Campus. (For phone numbers, see Helping Hands)

Campus Security Reports

If you do not wish to report the crime committed against you to the police, a Campus Security Report may be filed. This is an anonymous report you can file with The Office of Sexual Assault Education Programs. This office is located in the Sports Medicine Building at 1300 W. Broad St, Suite 2200. Any department in the Division of Student Affairs and Enrollment Services can assist you in filing a Campus Security Report.

The person who takes this report will ask some questions about general details of the assault. In certain situations, this general information might be shared with police or campus administrators in order to protect the university community. Your name will not be attached to this report in any way. These reports help keep an accurate account of area crime.

To contact
The Sexual Assault Education Office

Updated 7/03
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